On what grounds can somebody actually challenge a probate or a will? We’re doing a lot of internal training with my team right now, and I actually created a whole new system for us to be able to easily sort of pick from a list. What are all the different reasons we can challenge a probate if we see something’s not really going as it should?
It’s about two dozen things on that list and basically the 20 to 24 ways that somebody can screw up a probate if they’re handling it without doing things the right way.
Generally the big categories fall into things like whatever will or trust. Maybe even a beneficiary deed or somebody has a joint account. All those types of places where somebody says, “I leave it to you at my death, or you’re the joint owner, or it’s right of survivorship.” All of those types of documents are things that can be attacked for something called undue influence. That’s a big one, or you could attack it for lack of capacity.
You could say they didn’t understand what they were signing. Even if nobody was influencing them. Maybe they had dementia, Alzheimer’s, or something else that was causing them to not be able to understand what they were signing. So, those are some common things.
Also, if the person in charge has a will that is valid, or a trust that is valid, can you still challenge it? If they aren’t doing things correctly. Yeah, you can.
The big one there is called breach of fiduciary duties. What does that mean? Well, it basically means that if you’re the executor or the trustee, you are legally obligated to do the job correctly. You gotta do steps 1, 2, 3, 4, all the way through the very end. Do them legally, do them correctly. Don’t mess it up, because you’re legally liable.
If they don’t do things correctly, then that’s where you can challenge what they’re doing. Sometimes we’ve seen people, the trustees try to like- “I’m gonna sell the house to my best friend for a discount, and then I can get it from them later.” That’s a breach of fiduciary duty. So those are the big ways to challenge or contest a probate.
Challenging a probate or will in Arizona can occur on various grounds. They focus on claims of undue influence or lack of capacity. Even if the document itself is valid, you can challenge the conduct of the executor under the breach of fiduciary duties. This includes actions like improper asset sales or self-dealing.